Categories
The Web and Technology

Brief Thoughts for the Week of 2009-06-12

  • I am not sure what to make of this… http://2006.1-click.jp/ #
  • My favorite quotation: "It takes great courage to see the world in all of its tainted glory, and still to love it." #
  • "I've been listening to my gut since I was 14 years old, & frankly speaking, I've come to the conclusion that my guts have shit for brains." #
  • If I'm ever in a position to, I'd like to think I'd be this cool about helping people out… http://xurl.jp/90r #
  • Today feels way too much like a Friday…and I really wish it were one… #
  • For whatever reason, feeling just a bit off today… #
  • Html humor: http://imgur.com/kJLcu.jpg #
  • Obama's Grand Bargain as a response to the deficit problem http://2parse.com//?p=3079 #
  • Are you supporting hatred and intolerance of Muslims, gays, and immigrants by drinking Rockstar Energy Drink? http://xurl.jp/vur #
  • Judge Sotomayor defends a racist NYPD cop http://2parse.com//?p=3063 #
  • I'm not sure why – but I love walking in the rain (if I have an umbrella) #
  • Still coughing and feeling sick dammit – thought a weekend's worth of rest would fix this issue… #
  • Make music, waste time… http://lab.andre-michelle.com/tonematrix #

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Categories
Barack Obama Domestic issues Economics Financial Crisis Health care Iran Politics The Opinionsphere

Mirror Neurons, Iran’s Fissures, Yglesian Insights, The Deficit Crisis, Rare Minerals

Once again, it’s Friday, so it’s time for my weekend reading recommendations.

1. Mirror Neurons. Daniel Lametti explains the importance of mirror neurons in the Scientific American.

2. Iran’s Fissures. Roger Cohen has been prominently writing about Iran for the past year or so – predicting and pushing for a thaw in relations. Now, on the cusp of an important election, Roger Cohen discusses Iran:

Iran, its internal fissures exposed as never before, is teetering again on the brink of change. For months now, I’ve been urging another look at Iran, beyond dangerous demonization of it as a totalitarian state. Seldom has the country looked less like one than in these giddy June days.

3. Yglesian insights. Matt Yglesias’s blog has long been on my must-read list – but he’s offered some especially insightful observations in various contexts about the free market in recent weeks. Here Yglesias speculates about the advantages of non-profit-maximizing corporations in a free market:

After all, profit-maximization is not a natural form of human behavior. I think it’s best understood as a very idiosyncratic kind of pursuit. It happens to be one that’s economically rewarded because with money to invest tend to want to invest it with would-be profit-maximizers. Thus, in fields of endeavor where the ability to raise large sums of capital on reasonable terms is a huge advantage, a profit-maximization impulse winds up being a huge advantage.

In a later post about health care, Yglesias makes a related point:

[P]art of what’s wrong with the world is that the very same people who spend a lot of time cheerleading for free markets and donating money to institutions that cheerlead for free markets—businessmen, in other words—are the very people who have the most to gain from markets being totally dysfunctional. The absolute worst place on earth you can find yourself as a businessman is in the kind of free market you find in an Economics 101 textbook. As a market approaches textbook conditions—perfect competition, perfect information, etc.—real profits trend toward zero. You make your money by ensuring that textbook conditions don’t apply; that there are huge barriers to entry, massive problems with inattention, monopolistic corners to exploit, etc.

4. How to tackle the deficit crisis. Set off by David Leonhardt’s excellent look at the forthcoming deficit crisis, the Opinionsphere quickly took this up as a theme of the week. Noah Millman at The American Scene had the best take on how to tackle the deficit crisis – once we decide to get serious. One of the main ways he suggests is to reform the tax code:

We have an income tax that is riddled with deductions that undermine its purported progressivity, and we rely on increasingly steep progressivity to justify every additional change to said code. A 1986-style reform that eliminated many deductions and lowered rates would not only be a likely booster of the economy, but would probably raise revenue – certainly on the corporate side.

5. China’s Great Game. And of course, the Financial Times reported that China has almost cornered the world market in rare minerals needed for most high tech products. I’m looking forward to some analyst really following up on this and explaining what implications – if any – this has.

Categories
Conservativism Economics Libertarianism Political Philosophy Politics The Opinionsphere

The Limits of the Free Market

George Will:

Trillions of dollars of capital are being allocated sub-optimally, by politically tainted government calculations rather than by the economic rationality of markets. Hence the nation’s prospects for long-term robust growth – and for funding its teetering architecture of entitlements – are rapidly diminishing.

The president’s astonishing risk-taking satisfies the yearning of a presidency-fixated nation for a great man to solve its problems. But as Coolidge said, “It is a great advantage to a president, and a major source of safety to the country, for him to know that he is not a great man.” What the country needs today in order to shrink its problems is not presidential greatness. Rather, it needs individuals to do what they know they ought to do, and government to stop doing what it should know causes or prolongs problems.

One thing that has frustrated me greatly over the past months has been George Will’s apparently unshaken faith in the perfection of the free market. Here he demonstrates this again – speaking of the “sub-optimal” allocation of resources by the government. I have to wonder what he makes of how the financial sector allocated resources over the past few decades. At this point, I think most of us can appreciate the value of  “sub-optimal” investment when compared to the catastrophic investments the “free market” allowed.

It’s not that I don’t think Will has a point. For one, I tend to agree with his anti-royalist attitude towards the executive branch. And secondly, I agree with him that a free market, by distributing resources and power among many actors, can achieve a kind of collective wisdom – and by allowing constant tinkering and creative destruction we allow for the possibility of positive black swans. This is the genius of the market, rooted in the knowledge that no one person or team of persons can know enough to guarantee the right decision. Instead, the best results are obtained by creating many seperate decision-making bodies and creating a structure that allows those that are actually successful to be rewarded.

But Will doesn’t seem to have noticed the serious flaws in the American and worldwide market – or at least, the only flaws he seems to have noticed are those involving government interference.

[digg-reddit-me]Even in the most traditional analysis, bankers got into this crisis largely because they were able to escape regulation. They created shadow banks, derivative products, and other complex financial instruments which were designed to evade any regulations in place. George Will and others will likely point to government-backed organizations like Fannie Mae and Freddie Mac as key causes in inflating the housing bubble – but it is difficult to actually make this case – as these institutions, for their size, weren’t that involved in the subprime mortgage market – and in fact were pushed to become involved by the enormous profits being made by the banks. What Will doesn’t want to acknowledge was that even in this most traditional analysis, the root of the problem is the misalignment of incentives rather than government distortions of the market.

What Will fails to acknowledge is that our markets are constricted by lack of government interference. The freedom of the financial marketplace – especially the distribution of power and decision-making that makes the market work – is severely restricted by the size of our banks. Their size not only makes them too big to fail, it also prevents the market from being free.

Our financial and automobile industries have ended up combining the worst aspects of socialism and capitalism – without the benefits of either – and that is even before the government stepped in.

Think about it – the free market is effective because it prevents any small set of individuals from monopolizing decision-making. Especially in the world today with so much information available and events moving so quickly, the “right” business choices to make aren’t always clear. A free market – by allowing each business to make its own choice – prevents decision-making from falling victim to individual follies. But our current economic system – with it’s enormous corporations – ends up recreating the feudal system in which power is not centered in a single place, but in a handful of powerful “princes.” While these “princes” push for free market reforms, it is not in their interest to actually achieve this ideal free market – as Yglesias points out:

As a market approaches textbook conditions—perfect competition, perfect information, etc.—real profits trend toward zero. You make your money by ensuring that textbook conditions don’t apply; that there are huge barriers to entry, massive problems with inattention, monopolistic corners to exploit, etc.

George Will himself has pointed out that those “reforms” that are passed tend to be of a specific sort, following what Will calls, “the supreme law of the land…the principle of concentrated benefits and dispersed costs.” What free market supporters rarely seem to admit is that the free market exists not in spite of the government, but because of it. And today, our market is far from free because the government has failed to protect it – and has instead allowed the worst characteristics of capitalism (exploitation of labor; externalizing as much cost to society as possible, for eg. pollution) with the worst characteristics of socialism (concentration of power and limitation of competition) to create a kind of modern feudal society. In  this feudal society, freedom is enjoyed by the “princes” of finance and industry while the creative ferment of a real free market is formally protected but effectively quashed.

I would like to see George Will take on the limitations of capitalism at some point. As a conservative and an intelligent man, he must see they exist.

[Image by mischiru licensed under Creative Commons.]

Categories
The Opinionsphere

The more extreme the Government’s abuses are, the more compelling is the need for suppression

Glenn Greenwald:

A much more critical issue here is whether the President should have the power to conceal evidence about the Government’s actions on the ground that what the Government did was so bad, so wrong, so inflammatory, so lawless, that to allow disclosure and transparency would reflect poorly on our country, thereby increase anti-American sentiment, and thus jeopardize The Troops.  Once you accept that rationale – the more extreme the Government’s abuses are, the more compelling is the need for suppression – then open government, one of the central planks of the Obama campaign and the linchpin of a healthy democracy, becomes an illusion.

Categories
Humor Politics The Opinionsphere

Stay Classy, Sarah Palin: Palin Insinuates David Letterman is a Child Rapist

[digg-reddit-me]As I’m not sure how much attention this has already gotten, let me start with a brief overview of the Palin-Letterman feud that apparently got going a few days ago.

Letterman, after joking that Sarah Palin herself “Bought makeup from Bloomingdale’s to update her ‘slutty flight attendant’ look,” then went after her family’s famous fecundity:

One awkward moment for Sarah Palin at the Yankee game, during the seventh inning, her daughter was knocked up by Alex Rodriguez.

Given Bristol Palin’s public figure, I think it’s well within the bounds of taste for a late-night humorist to go after her. I mean it’s undeniable that she cuts a bit of a ridiculous figure, as a self-appointed role model for abstinence and single mother. The 14 year old daughter  – on the other hand – doesn’t deserve to be so ridiculed.

The Palin family then made the assumption that Letterman was referring to their younger daughter – and furiously, Todd Palin responded:

Any ‘jokes’ about raping my 14-year-old are despicable. Alaskans know it and I believe the rest of the world knows it, too.

And Sarah Palin decided to go with a more political response – calling on the familiar Nixonian contrast between Hollywood/NY and “real Americans” like her:

Laughter incited by sexually-perverted comments made by a 62-year-old male celebrity aimed at a 14-year-old girl is not only disgusting, but it reminds us some Hollywood/NY entertainers have a long way to go in understanding what the rest of America understands – that acceptance of inappropriate sexual comments about an underage girl, who could be anyone’s daughter, contributes to the atrociously high rate of sexual exploitation of minors by older men who use and abuse others.

Letterman seeming a bit shocked by all this replied:

These are not jokes made about her 14-year-old daughter. I would never, never make jokes about raping or having sex of any description with a 14-year-old girl…. Am I guilty of poor taste? Yes.

But the Palins apparently have no use for apologies – and ignore Letterman’s assertion that they had made the wrong assumption about who he was referring to. Rather than seeing this as closed, and protecting their daughter’s privacy by letting it go, they instead make their 14-year old daughter the punch line in a zinger designed to keep this story in the news. They insinuate David Letterman is a child rapist, rejecting Letterman’s offer to appear on his show by saying:

[I]t would be wise to keep Willow away from David Letterman.

Even if David Letterman were referring to Willow – which he denies and which the joke was not clear about – what possible purpose, aside from political advantage and publicity, does it serve for the Palins to keep this going? The whole reason the outrage over Letterman’s joke hits a nerve is that even bringing up an older man taking advantage of an underage girl is taboo – especially if one is referring to a particular girl. Even bringing it up is dangerous. And this is precisely what the Palins are now doing – repeatedly – for no other reason than to advance Sarah Palin’s career. They’re using insinuations of child rape as a political weapon, as zingers. This is not a subject to be trifled with – or politicized. It’s wrong. Period. This isn’t a Hollywood versus the heartland issue. This is something we all agree on.

But unfortunately, when the Palins see an opportunity to divide Americans and demonize millions Americans, they apparently cannot let the chance slip by – even if it is in the best interest of their daughter.

Categories
Barack Obama Foreign Policy Iran National Security

Iran’s Green “Revolution”

There have been several positive indicators in the Middle East and surrounding regions since Obama’s Cairo speech – from the survival of the pro-Western government in Lebanon to the growing opposition of ordinary Pakistanis to the Taliban. It seems in both places – as well as in Iraq and Afghanistan – that the best strategy taken so far has been George W. Bush’s unintentional one of letting Al Qaeda win – and then stepping in to clean up after the fact once people have become disillusioned. But so far, the issue that has gotten the most attention has been Iran’s election.

Still, I’m not quite sure what to make of Iran’s election tomorrow. International newspapers seem to be hyping Mir Hossein Mousavi as Iran’s answer to Barack Obama. He is – it seems – an individual who has come to personify “change” and engagement with the world at large standing against a radical, polarizing, religious right-winger. At the same time Mousavi has close relations with the establishment of Iran – which allowed him to run. But he, like Obama, is not comfortable being a populist. His main opponent, Ahmadinejad, is. As Cameron Abadi described Mousavi’s defects in the Foreign Policy:

He talks only in generalities about his plans, his emphasis on competence and “scientific management.” He’s made promises to loosen restriction on personal freedom, but his ire is more drawn by Ahmadinejad’s “dictatorial” flouting of the checks and balances of the Islamic Republic’s constitution. Mousavi promises change, but no one would mistake him for Barack Obama. He might not even qualify as a Michael Dukakis.

But somehow this establishment technocrat continues to routinely elicit rock-star receptions across the country. In the run-up to the election, much of grayish Tehran has been draped in green, the official color of the Mousavi campaign. The police and khaki-clad national guards have been forced to watch every day as Tehran’s youth — Iran’s baby boom generation of the 1980s — assemble in giddy pandemonium, distributing green bracelets and banners of protest against Ahmadinejad’s presidency, proselytizing to undecided pedestrians and whenever in doubt shouting taunting cries of “Ahmadi, bye-bye!” At night, the chorus of chants and laughter and hastily written campaign songs mingle with the din of car horns…

“We’ve never seen this before,” she said with a tremble. “This is our revolution.” [my emphasis]

Other reports have focused on Ahmadinejad’s large and boisterous crowds – and the excitment propelling him. Some have likened Ahmadinejad’s place in Iranian politics to Sarah Palin’s.

One recurrent theme in the reports on the Iranian election is that economic rather than foreign policy issues will determine the result. The downturn in Iran’s economic fortunes has brought to the forefront festering social issues such as the “marriage crisis” in which many Iranian men are being “priced out” of the marriage market and the ambiguous role of women in Iranian society (as they are more educated – 60% of university students are women – yet much more likely to be umemployed – as only 15% of the workforce is female.)

It’s not clear which way this election will go – and even if Mousavi wins in a landslide, it will not change the power structure in Iran significantly – as the power is concentrated in Khamenei’s hands.

But a hopeful sign is not something to be dismissed – and the desire for change moderately expressed can bring about a better world than most revolutions.

[Image by Shahram Sharif licensed under Creative Commons.]

Categories
Barack Obama Economics Financial Crisis Politics The Bush Legacy The Opinionsphere

Obama’s Grand Bargain (as a necessary response to the deficit problem)

[digg-reddit-me]David Leonhardt has a typically excellent piece in the Times with a helpful graph explaining the deficit problem. Leonhardt tells the story of how the $800 billion surpluses left by Bill Clinton have turned into $1.2 trillion deficits – or what he calls the “$2 trillion swing.” He identifies four categories of spending accounting for the swing in descending order of significance:

the business cycle, President George W. Bush’s policies, policies from the Bush years that are scheduled to expire but that Mr. Obama has chosen to extend, and new policies proposed by Mr. Obama.

Leonhardt identifies only 10% of the current deficit as resulting from either Obama’s stimulus package or new spending (which is only 3%). 20% of the deficit is traced to Bush policies set to expire that Obama is continuing – for example, a large portion of Bush’s tax cuts and the Iraq war. 33% comes from legislation signed by Bush – like the Medicare prescription act. And Leonhardt attributes 37% of these enormous deficits – the single largest factor – to the combination of increased counter-cyclical spending (on food stamps, unemployment, etc.) and a decrease in government revenues resulting from the downturn.

This math is a large part of what made those Tea Parties – as well as so much of the Republican opposition – ridiculous. First, these Tea Parties – and most of the opposition – was silent while George W. Bush pushed through legislation account for 53% of the current deficit – but suddenly was up in arms once a Democrat proposed 10% in spending to stimulate the economy and fix some significant problems. At the same time, many of those conservatives who were strong opponents of Bush continue to propose more tax cuts. In fact, during the debate over the stimulus bill, Republicans denounced the deficits being caused by government spending while proposing a tax cut bill that would create even large deficits.

What Leonhardt describes is a nation that has been subjected to the conservative “starve the beast” strategy of cutting taxes and increasing spending. This deliberate policy has brought us to the brink of disaster – as George Will describes:

For years, many conservatives advocated a “starve the beast” approach to limiting government. They supported any tax cut, of any size, at any time, for any purpose, assuming that, deprived of revenue, government spending would stop growing. But spending continued, and government borrowing encouraged government’s growth by making big government cheap: People were given $1 worth of government but were charged less than that, the balance being shifted, through debt, to future generations. In 2003, Republicans fattened the beast with the Medicare prescription drug benefit (Cooper opposed it), which added almost $8 trillion in the present value of benefits scheduled, but unfunded, over the next 75 years.

Liberalism’s signature achievement — the welfare state’s entitlement buffet — will, unless radically reduced, starve government of resources needed for everything on liberalism’s agenda for people not elderly. Conservatives want government limited, but not this way.

Leonhardt quotes Alan Auerbach, an economist at the University of California, Berkeley,

Bush behaved incredibly irresponsibly for eight years. On the one hand, it might seem unfair for people to blame Obama for not fixing it. On the other hand, he’s not fixing it.

And not fixing it is, in a sense, making it worse.

I think Andrew Sullivan has the right tack on this:

I don’t blame Obama for failing to turn all this around in five months, and for running a debt this big right now. I willblame him if he does nothing serious to tackle this in the next year.

Leonhardt has been a reporter with good access to the White House in these early days of the presidency. Which suggests that this article is not coming out of the blue for this administration. In fact, shortly before taking office, Obama talked about the “Grand Bargain” he would need to negotiate to deal with precisely this issue. It seems to me that this piece begins to set the stage for what Obama is looking to do after cap-and-trade and health care are passed – to tackle the issues of tax reform and entitlement reform.

All this makes his continued and extraordinary attempts to woo members of the House and Senate – and his efforts to give them a role in determining policy (as described in Matt Bai’s new article) – essential. As Bai describes:

“One of the mistakes of the past is that when presidents arrive on Capitol Hill with legislation chiseled into stone, it’s not well received,” says David Axelrod, one of Obama’s most influential advisers. “You have to give people a sense of ownership.”

Obama seems to have decided early on that his model for pursuing legislation would be something closer to Ronald Reagan, a president whose political savvy he has often expressed admiration for. Partly by necessity, because he had to work with a Democratic Congress, Reagan was known for providing broad policy frameworks while delegating the details to lawmakers. In this way, he managed to fundamentally reform the tax code and shore up Social Security during his first year in office — achievements for which he gladly took credit, even if Congress didn’t give him precisely what he wanted. To this end, Obama’s chief health care adviser, Nancy-Ann DeParle, has been all over Capitol Hill, consulting with various members and soliciting their advice, but the administration has been careful not to weigh in with too much authority or to make any public pronouncements on the negotiations.

Obama may have been able to push through health care and cap-and-trade with his Democratic majorities and personal popularity. But he needs the Congress and Senate to work with him on tax reform and entitlement reform once the financial crisis has been dealt with. Or perhaps sooner – as the bond market pressures the administration to set a clear path which involves a return to fiscal sanity.

To do this, Obama needs the trust and support of a large majority of Congressmen and Senators. And he needs to mobilize public and elite opinion to support a significant change in our tax and spending policies. This article by David Leonhardt strikes me as an attempt to set the stage for this soon-to-be debate.

[Picture by Peter Souza courtesy of the White House.]

Categories
Barack Obama Economics Financial Crisis Law Politics The Bush Legacy

The Supreme Court Holds Up the Chrysler Sale

I actually decided to write a short piece stating my hope that the Supreme Court would look into Obama’s and Bush’s expansion of executive powers in tackling the financial crisis before the Supreme Court delayed the sale of Chrysler to Fiat. Now that they have, I’m relieved if a bit nervous. The key issue is the use of executive power in a crisis – as Michael J. de la Merced explained the issue:

In a broader context, such a decision would also give the justices an early opportunity to consider the scope of the wide-ranging but not unlimited authority that Congress granted the president to address the economic crisis.

I think this is a good thing – though I’m not sure how the timing of this will affect things. Generally, the strongest decisions restricting the executive’s freedom in a crisis have come after the crisis has past. With the rash of bad news on the economic front – even as most indicators seem to be levelling off – this financial crisis is not yet over. On the one hand, strong action by the Court at this time to curb the power of the president could destabilize the economy, as it is confidence in the power and determination of the executive branch and the Federal Reserve to backstop the financial system that seem to have restored confidence in the market and economy itself. At the same time, the Supreme Court is less likely to challenge the president’s authority in the middle of a crisis – making it more likely the decision will be deferential.

It is possible that all of these competing claims could be dealt with responsibly – with a Solomonic decision along the lines of Marbury v. Madison. It’s also possible that the Court may find Presidents Bush and Obama both acted constitutionally in their response. But as a matter of policy, the recent government interventions into the market are ill-advised if they extend beyond the minimum amount of time. As I wrote regarding Obama and the Rule of Law:

The power of the executive branch has grown enormously in the financial crisis – between the Stimulus Bill and the bank bailout. While in the short-term this may be necessary, if steps are not taken, this would undermine the balance of power between the federal government and the states. While this in itself is not a violation of the Rule of Law – it does weaken the system which together helps maintain the Rule of Law.

The one issue that strikes me as worth considering – on matters of constitutionality rather than policy – is whether or not Bush and then Obama acted within their powers in providing loans to Chrysler and General Motors; perhaps a Court should also look at the broad authority given by the TARP bill itself and set some standards regarding what authorities and monies can and cannot be extended to the executive branch by the legislative.

The whole process of drafting and passing the TARP bill was obviously flawed – though it’s difficult to judge legislation passed in the midst of a crisis. The only logical way out of this I’ve heard mentioned would be to “stockpile laws” as Philip Bobbitt once suggested with regards to terrorism.

But even as there is a flawed process, it’s not clear what if anything was unconstitutional.

At the same time, I’m glad to see the Court looking seriously at getting involved. I’m all for these checks and balances.

Categories
Law Political Philosophy Politics

Judge Sotomayor Defends a Racist Cop

[digg-reddit-me]

All the talk of Sonia Sotomayor’s racism tends to focus on a few of her remarks in her speeches (especially one in particular) and her ruling in a single case. But looking at her record on discrimination lawsuits, for example, she only ruled for the plaintiffs in 10 of the 96 racial discrimination claims that were before her. In one prominent case, she sided with a police officer who had sent out anonymously racist and anti-Semitic mailings in a strongly worded dissent. What’s more significant to me though is the extent to which Sotomayor interpreted the law to protect individual rights, in this case, the First Amendment.

Last week, I wrote I was concerned about Sotomayor’s decision in the “douchebag” case:

I think the role of Courts in checking the increasing power of corporations, schools, and other semi-voluntary organizations to monitor and police the private activities of citizens is going to gradually become a big issue. That Sotomayor signed onto an opinion then that allowed the restriction of free speech on a non-school affiliated blog because calling administrators “douchebags” presented a “foreseeable risk of substantial disruption” is a matter of concern.

The case of Pappas v. Guiliani shows a different side of Sotomayor’s jurisprudence. The plaintiff was an NYPD officer who was resposible for maintaining the department’s computers. He received several mailings at his home from charity groups associated with another police department and returned them anonymously filled with “offensive racially bigoted materials.” Or so he thought. The Nassau County Police Department started an investigation – and were able to determine Thomas Pappas’s identity because the return envelopes were coded to be tracked. The police department sent out another mailing to Pappas – and again received hate mail in return. They notified the NYPD which then performed the same experiment – and once again, Pappas sent them back an envelope filled with racist literature. At a disciplinary trial before the NYPD, Pappas explained his behavior was a form of protest as he “was tired of being shaken down for money by these so-called charitable organizations.” The NYPD then fired him – and in return he sued claiming his dismissal violated his First Amendment rights. The first judge to hear his case dismissed it – and Pappas then appealed to a three judge panel of which Judge Sotomayor was one member.

The panel upheld the dismissal – but Sotomayor registered her lone dissent in a strongly-worded opinion.

In upholding the dismissal, the Court determined that Pappas speech was protected under the First Amendment as it was “upon a matter of public concern.” But the Court explained, under certain circumstances, free speech rights were subordinated to the interest of the state – specifically with regards to the state as an employer. The opinion quoted Justice Oliver Wendell Holmes: “A policeman may have a constitutional right to [speak his mind], but he has no constitutional right to be a policeman.” Essentially, with regards to state employees, the protection of the First Amendment is limited to matters of public concern (to avoid an employee being protected while making privately disparaging or harassing remarks) and then must be balanced against the interests of the state in it’s public relations. If, for example, a police chief publicly states he is in favor of discriminating, he can then be fired – even though he is speaking on a matter of public concern – because his speech interferes with the ability of the police department to do it’s job. Court precedent states that each judge must evaluate the potential damage that would be caused by keeping the person and balance this against the First Amendment rights of the individual. In this case, the majority opinion found that the potential damage of a computer technician being a racist was vast – due to the publicity surrounding the case.

The other judge on the panel agreed that Pappas’s case should have been dismissed – but did not believe it was necessary to consider the First Amendment implications as the Court’s official opinion did, saying that Pappas’s speech was merely private – and thus not protected by the First Amendment.

Judge  Sotomayor though dissented:

Today the Court enters uncharted territory in our First Amendment jurisprudence. The Court holds that the government does not violate the First Amendment when it fires a police department employee for racially inflammatory speech — where the speech consists of mailings in which the employee did not identify himself, let alone connect himself to the police department; where the speech occurred away from the office and on the employee’s own time; where the employee’s position involved no policymaking authority or public contact; where there is virtually no evidence of workplace disruption resulting directly from the speech; and where it ultimately required the investigatory resources of two police departments to bring the speech to the attention of the community…The Court should not…gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like and because a government employer fears a potential public response that it alone precipitated.

She had several points. One was that while she did not dispute that someone “has no constitutional right to be a policeman,” the position one held was important. Thus, she writes:

In Rankin, the Supreme Court applied this analysis to the law enforcement context and found that “where . . . an employee serves no confidential, policymaking, or public contact role, the danger to the agency’s successful functioning from that employee’s private speech is minimal.” Rankin, 483 U.S. at 390-91.

She also attacked the Court’s opinion regarding how it attempted to balance the potential damage caused by Pappas’s mailing and his free speech rights:

At some level of abstraction or aggregation, the potential for racist statements to damage the NYPD may indeed be “immense.” But that is not how the fact-specific Pickering test is applied. The question is how potentially damaging is this speech — that is, these leaflets sent by this employee under these particular circumstances.

In the end, Sotomayor’s defense of Pappas is grounded in the precise principles I would hope:

The majority’s decision allows a government employer to launch an investigation, ferret out an employee’s views anonymously expressed away from the workplace and unrelated to the employee’s job, bring the speech to the attention of the media and the community, hold a public disciplinary hearing, and then terminate the employee because, at that point, the government “reasonably believed that the speech would potentially . . . disrupt the government’s activities.” Heil v. Santoro, 147 F.3d 103, 109 (2d Cir. 1998). This is a perversion of our “reasonable belief” standard, and does not give due respect to the First Amendment interests at stake.

Sotomayor’s opinion is exactly what I would want from a Supreme Court justice. It is grounded in law, precedent, and a reverence for our founding principles; in this instance, she is also defending the unsavory, even though she clearly disagrees with his positions; most importantly, she is protecting basic rights against powerful interests.

[Image by keithpr licensed under Creative Commons.]

Categories
Barack Obama Law National Security Politics The War on Terrorism

Closed-Door Hearings

Last week, at a closed-door Intelligence Committee hearing, Republican members claim they were told “the truth that enhanced interrogation of detainees is effective.” The members did not offer details as to what they learned – but by speaking about this, they clearly violated the closed-door policy. As Democrat Oversight and Investigations Chairwoman Jan Schakowsky said:

“I am absolutely shocked that members of the Intelligence committee who attended a closed-door hearing … then walked out that hearing — early, by the way — and characterized anything that happened in that hearing. My understanding is that’s a violation of the rules. It may be more than that.”

This reminds me of the recent controversies regarding Nancy Pelosi and the allegations of abuse of the Gang of Eight process. Wikipedia describes it:

[T]he President may elect to report instead to the Gang of Eight when he feels “it is essential to limit access” to information about a covert action.

They are all sworn to secrecy and there is no vote required.

In each of these circumstances, the power of legislators to do their job – and check the executive branch – is curtailed by secrecy. This is a situation crying for judicial oversight – or for political courage. Either immunity could be offered for Congressmen and -women – allowing them immunity from prosecution for what they reveal of classified information; or perhaps, they could create some judicial process to force classified information to be revealed.

This would help counteract the increasing trend to classify every document possible.